In re Rose F.
Filed 10/22/08 In re Rose F. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Lassen)
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In re ROSE F., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. ROSE F., Defendant and Appellant. | C056519 (Super. Ct. No. J4996) |
Pursuant to a negotiated plea, Rose F. (the minor) admitted she committed felony grand theft, and the juvenile court dismissed a burglary allegation. She was placed on probation but, after multiple probation violations involving theft and possession of alcohol and the use of marijuana and other drugs, the court committed the minor to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (now the Division of Juvenile Facilities) for a term or period of commitment not to exceed two years.
On appeal, the minor contends the juvenile court (1) failed to appreciate its discretion to set the maximum period of confinement under Welfare and Institutions Code section 731 (further section references are to the Welfare and Institutions Code unless otherwise specified), (2) miscalculated the amount of precommitment credit, and (3) failed to sufficiently specify whether the grand theft offense was a misdemeanor or a felony.
We shall direct the juvenile court to correct its error in calculating the minors precommitment credit and to further correct the commitment order to reflect a maximum period of confinement of two years, not two years and one day. In all other respects, we shall affirm the order.
DISCUSSION
I
Pursuant to section 731, the juvenile court cannot order a minor to be confined for more than the maximum period of imprisonment that could be imposed on an adult; and the court has discretion to sentence the minor to a lesser term based upon the facts and circumstances of the matter that brought the minor before the court. (In re Jacob J. (2005) 130 Cal.App.4th 429, 435-437; 731, subd. (c).)[1] [W]here . . . the juvenile court sets the maximum term of physical confinement at . . . the maximum term of an adult confinement, the record must show the court did so after considering the particular facts and circumstances of the matter before it. (In re Jacob J., supra, 130 Cal.App.4th at p. 438.)
The minor argues the record fails to show the juvenile court understood it had discretion to set the maximum term of confinement at less than the adult maximum term. She believes this is so because the clerks minutes and the written commitment order reflect that the court ordered a maximum period of confinement of two years and one day, which is the equivalent of the maximum term of three years for grand theft (Pen. Code, 18, 489) less the minors precommitment credit of 11 months and 29 days.
However, the reporters transcript reflects the court expressly ordered a commitment to the juvenile detention center . . . for a term or period of commitment not to exceed two years. In other words, it selected a maximum period of confinement of two years, which is the middle term, rather than the maximum adult term of three years. The courts oral pronouncement controls over contrary statements in the minute and commitment orders. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471.) Therefore, the record discloses the court appreciated its discretion to specify a term of confinement less than the theoretical maximum based upon the particular facts and circumstances, and it did so.
Accordingly, we shall direct the juvenile court to correct the written commitment order and the clerks minutes to reflect a maximum period of confinement not to exceed two years.
II
The minor contends, and the People concede, that the juvenile court miscalculated the amount of precommitment credit and that the minor is entitled to an additional 30 days. We agree the court miscalculated the precommitment credit.
Wards committed to the Division of Juvenile Facilities are entitled to credit for the days spent in physical confinements prior to their commitment. (In re Eric J. (1979) 25 Cal.3d 522, 536.) The court has a nondelegable duty to calculate the number of days earned. (In re John H. (1992) 3 Cal.App.4th 1109, 1111.)
The record indicates that the minor served various periods of precommitment time in detention facilities for a total of 11 months, 29 days. However, one of these confinements, which occurred between March 5, 2007 and April 26, 2007, is calculated as being comprised of only 23 days instead of 53 days. Adding the actual days of custody reflected in the probation report discloses that the minor is entitled to 389 days of precommitment credit.
We shall direct the juvenile court to correct the commitment order accordingly.
III
The minor admitted committing grand theft, which is punishable as either a felony or a misdemeanor. (Pen. Code, 489, subd. (b).) Relying on In re Manzy W. (1997) 14 Cal.4th 1199 (hereafter Manzy W.), she contends that remand is required because the record fails to disclose the juvenile court recognized its discretion to declare the offense a misdemeanor. We disagree.
Section 702 states in pertinent part: If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony. In Manzy W., supra, 14 Cal.4th 1199, the juvenile court failed to formally declare whether the offense was a misdemeanor or felony. (Id. at pp. 1203-1204.) The Supreme Court held that remand for compliance with section 702 is required where the juvenile court fails to make the required felony/misdemeanor declaration of a wobbler offense and the record fails to show the court was aware of its discretion to impose a misdemeanor sentence. (Id. at pp. 1206-1209.)
Unlike the case here, Manzy W. did not involve a negotiated disposition for the admission to a wobbler offense stipulated to be a felony in exchange for the dismissal of another allegation. Here, the minor expressly admitted committing a felony grand theft in exchange for the dismissal of a burglary allegation. And the court expressly declared that the minors offense was a felony. Neither Manzy W. nor any other case has held that the courts express declaration of a felony, without more, cannot demonstrate the requisite exercise of discretion.
As noted in Manzy W., the purpose of requiring a formal declaration is to ensur[e] that the juvenile court is aware of, and actually exercises, its discretion under . . . section 702. (Manzy W., supra, 14 Cal.4th at p. 1207.) Thus, where a juvenile court makes an express declaration, the declaration itself is evidence that the court was aware of and exercised its discretion. Under the circumstances, Manzy W., supra, 14 Cal.4th 1199 simply is inapplicable and is of no assistance to the minor.
The minor argues the courts declaration that the offense was a felony and her admission that she committed a felony are insufficient for purposes of section 702 because several of the clerks minutes indicate that the grand theft was reduced to a misdemeanor on March 15, 2006, at which time the burglary count was dismissed. She asserts we must remand the matter for the juvenile court to designate the appropriate level of the offense.
The minors reliance on the minutes is unavailing because they are not supported by any court order or action on March 15, 2006, or at any other time. Indeed, the minutes from March 15, 2006, state that the minor admits the allegations of count 2 of the petition, i.e., 487 PC Fel[ony]. As discussed previously, the reporters transcript of the proceeding discloses the minor admitted committing a felony and the court expressly stated the offense was a felony. Thereafter, on July 18, 2007, the court imposed a maximum period of confinement of two years, which would not be permissible if the court had reduced the offense to a misdemeanor. Furthermore, the probation report prepared for the hearing referred to the offense as a felony, and the minor did not object to this representation at the hearing.
Under the circumstances, we agree with the Peoples assertion that the notations concerning the reduction in the offense reflect clerical error that must be corrected.
DISPOSITION
The order committing the minor to the Division of Juvenile Facilities is affirmed. The juvenile court is directed to correct its minutes and the commitment order to reflect the minors grand theft offense is a felony; the maximum period of her confinement is two years, rather than two years and one day; and she is entitled to 389 days of precommitment credit. The juvenile court is further directed to send a certified copy of the corrected commitment order to the Division of Juvenile Facilities.
SCOTLAND , P. J.
We concur:
DAVIS , J.
CANTIL-SAKAUYE , J.
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[1] Section 731, subdivision (c) states in pertinent part: A ward committed to the Division of Juvenile Facilities may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment that could be imposed upon an adult convicted of the offense or offenses that brought or continued the minor under the jurisdiction of the juvenile court. A ward committed to the Division of Juvenile Facilities also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section. . . .
